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When should I speak to a solicitor about my divorce.

Many people put off speaking to a solicitor because they are worried about the potential cost. Conversely, by speaking to a solicitor at the outset you are more likely to save costs in the long run as well as a lot of stress. The earlier you obtain legal advice about your separation the better. Practical advice about the divorce process and the likely outcomes for you will help you navigate the process with clarity and understanding. In my experience, couples who have both received early legal advice are more likely to reach a settlement and avoid the delay and costs excessive litigation can bring.

It is never too early to speak to a solicitor if you think your relationship is coming to an end. Burying your head in the sand will achieve nothing, facing up to the situation from an informed position will empower you to move forward and make the overall process less stressful. I often speak to people before they have made a definite decision about their relationship, but who want to explore their options and what their reality may look like of they proceed with a divorce.

Your partner or ex-partner need not know you have obtained legal advice if you decide not to proceed with the situation. The interactions you have with a lawyer will be confidential and your lawyer will be used to dealing with clients very discretely.

Just because you speak to a solicitor does not mean your case will end up in court. A good solicitor will seek to achieve the best outcome for you without litigation if possible. They will be able to support you through the mediation process and work with you to achieve an agreed outcome with your ex-partner.

Choosing the right solicitor for your matter is crucial and we therefore offer a free initial consultation so that you can find out more about our services and decide whether we are the right fit for you. 

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What are my common law marriage rights?

None!

This is one of the biggest family law myths in England and Wales, common law marriage does not exist in this jurisdiction.

Unless you are married or in a civil partnership, legally, with a certificate to prove it, you will not benefit from the statutory protection divorce law offers divorcing couples.

Cohabiting couple families are the fastest growing family type in the UK, however as a family lawyer, I have real concerns about the lack of statutory protection available for these families when relationships end. Divorce law gives the family court the power to redistribute assets in accordance with fairness and each party’s financial need, however, cohabitant’s have none of this protection.

Legal Remedies for Cohabiting Couples

The law for unmarried couples is messy. There are some remedies available, however, they were not drafted with families in mind and are far from ideal.

Family Home

If you are purchasing a property with your partner you should do so following advice from a solicitor which reflects each of your legal interest in the property. Cohabitation agreements and declarations of trust in relation to properties and assets are something you should consider.

If you do not however own the family home jointly with your partner, it instead being legally owned by your partner, you may be able to to make an application under the Trusts of Land and Appointment of Trustees Act 1996, the burden will be on your to establish that there was a “common intention” that you should have a “beneficial interest” in the property and that you relied upon that common intention to your prejudice. This area of law is complex and it can be expensive to pursue a claim.

Child Maintenance

For couples with children the person caring for the children can make an application to the Child Maintenance Service for child maintenance. This maintenance is however only for the children, most people are surprised at the low level of maintenance required and it is not intended to provide for the carer. It is possible in some cases to seek further financial support for children under Schedule 1 of the Children Act 1989 depending on the wealth of your partner and if you think this may apply to your matter you should seek legal advice as you may be entitled to remain in the family home and receive periodical payments including a carer’s allowance.

Further disputes about money and assets are most likely to be considered a contractual dispute and would be dealt with under civil rather than matrimonial law.

What Should Cohabiting Couples Do?

Talk about your finances and what you will do if your relationship ends. If you do not intend to get married or enter into a civil partnership consider entering into a cohabitation agreement. I know it is not romantic, however many of the day to day practicalities of living with someone aren’t and your relationship may benefit from some advance planning on how you intend to handle the day to day responsibilities of living together. You can set out your intentions, who will pay for what, who will buy what and what the plan is if you were to have a baby. You can also set out a plan to set out how you would divide up your finances should your relationship end. A little legal advice and planning at an early stage could save a lot of stress, anxiety, time and legal costs if your relationship ends.

Pensions are also a crucial consideration. Unlike married couples who usually automatically benefit under their spouses bill, partners will need to be nominated in order to be eligible for any death in service benefits.

Lastly, it is really important that you have an up to date will. If you aren’t married and your partner doesn’t have a will you have no rights to their estate. There may be some protection offered under the Inheritance Act (Provision for Family and Dependents) Act 1975, but that will be dependent on your circumstances and will require an application to the court. It will be much more straightforward if there is a valid will in place making appropriate provision.

Choosing the right solicitor for your matter is crucial and we therefore offer a free initial consultation so that you can find out more about our services and decide whether we are the right fit for you. 

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Cohabitation agreements

What is a cohabitation agreement?

Couples who live together, or are planning on living together can enter into a cohabitation agreement to set out their intentions in relation to their finances. A cohabitation agreement can set out who owns existing assets, including property and what your intentions are in relation to your day to day finances such as who should pay for what. It should also deal with how you would like any assets to be shared in the event that your relationship comes to an end.

Cohabitation agreements are important as couples who aren’t married do not have legal rights like those couples who are married or in a civil partnership. There is very little legal protection for unmarried couples who separate (disputes are usually dealt with under civil rather than family law) which can leave those couples who have lived together or shared joint assets in a very difficult and uncertain situation when they separate.

Why do I need a cohabitation agreement?

Many people misunderstand the legal position when they are in a lengthy cohabiting relationship and believe that their relationship is recognised by law and that they have somehow creates a “common law marriage”.

This is entirely false, the only couples protected under divorce law are those who are legally married or in a civil partnership.

Many others are getting on with life without giving too much thought to the legal status of their relationship. However, unfortunately when unmarried couples separate, the consequences can be financially devastating and cause significant difficulties for them going forward.

A cohabitation agreement offers security to both individuals in the relationship as to what will happen in the event of your separation. During the process of preparing a cohabitation agreement you will set out clearly your financial commitments to each other and avoid any misunderstandings with regards to own owns assets including any properties. The purpose is to avoid difficulties and disagreements in the event your relationship comes to an end.

What are the benefits of having a cohabitation agreement?

A cohabitation agreement will be extremely valuable in the event that your relationship does later break down. A little foresight and planning during the early stages of your relationship can offer certainty and peace of mind as well as other advantages:

  • Entering into a cohabitation agreement gives you the opportunity to review your finances and how the day to day household budgets etc will operate. It enables you to plan “how” you will live together so you are both clear who is responsible for what. This sets you off in your living arrangements from an informed and planned position so you both are clear who should be contributing to what.
  • A cohabitation agreement enables you to protect yourself from the financial repercussions in the event that your relationship ends. It can offer financial security in relation to how property and assets should be retained or shared in the event that you later separate.
  • A properly drafted and executed cohabitation agreement reduces the possibility of disputes at the end of a relationship. Disputes in relation to the ownership of a property following a period of cohabitation are extremely complex and expensive. A clear agreement reduces the change of litigation.

My partner pays for most things, do I need a cohabitation agreement?

A cohabitation agreement makes it clear who owns what and your intentions in the event you separate. It can offer protection to an economically weaker partner. For example if you are a parent who has stopped working in order to care for the children but the family home is in your partner’s name, your contributions in looking after the home and caring for the children can be recognised in the agreement and make provision for you in the event your relationship breaks down. In the event that you did not have a cohabitation agreement, it is likely you would be left with no legal share of the property of financial support from your partner.

I contribute much more than my partner, do I need a cohabitation agreement?

Yes, it is important you consider the arrangements in order to protect your wealth and assets in the event your relationship breaks sown. A formal agreement can make it clear which pre-owned assets are to remain yours and which are to be shared with your partner. If the property you live in is in your sole name, it is important that you ensure your legal interest is properly recorded and secured to avoid any contributions made by your partner unintentionally being considered as giving them a legal interest in the property.

The purpose of the cohabitation agreement is to provide you both with security and certainty in order to avoid disputes if your relationship comes to an end.

Is a cohabitation agreement legally binding?

A properly drafted and executed cohabitation agreement is a legal document which can be enforced by a court. It is really important that you both take separate independent legal advice on the agreement and that you are both open and honest about your finances if you want it to be upheld.

Cohabitation agreements are governed by ordinary rules of contract law and can therefore only be challenged on any of the ordinary contractual principles such as fraud, duress, undue influence, misrepresentation or mistake.

In order for a cohabitation agreement to be valid the following must apply:

  • You should both enter into the agreement freely and voluntarily;
  • The agreement should be set out in the form of a deed;
  • Each of you must sign the document;
  • You must update the agreement with any major life changes.

How do I make a cohabitation agreement?

Both you and your partner should seek advice from separate solicitors in order to prepare a cohabitation agreement. Whilst you can and should of course agree the position between yourselves, in order that the agreement is prepared and properly executed so that it is legally binding it is important it is prepared by a solicitor with experience in this area.

Whilst you may been able to find templates online it is much better to have bespoke agreement professionally prepared for your situation. In addition, for the agreement to be upheld in court, it is important that you have both sought independent legal advice on the contents of the document to ensure you both understand it and there are no errors in the contents.

I understand that the cost of preparing a cohabitation agreement can be off putting, however the cost of dealing with a dispute at the end of your relationship will be much higher and could result in lengthy and expensive legal proceedings.

What should I include in a cohabitation agreement?

Each cohabitation agreement will be unique and prepared to meet your individual circumstances however there are some key issues which you will likely want to cover:

Property

If either party owns a property before you move in together or you intend to purchase a property together it is really important to seek legal advice about how property should be owned.

You may want to make it clear that a property owned by one person prior to the relationship is to be kept separate to prevent a claim later being made over it. This is particularly important where you intend to cohabit in a property owned by just one of you.

If you buy a property during your relationship and it is owned by just one of you, again you will need legal advice as to how to structure this to avoid a later claim.

A jointly owned property will also require some consideration, how will payments for mortgage, maintenance and improvements be made and how will the property be dealt with if you separate.

It is important that you consider where you will both live in the event of your relationship ending. If you jointly own a property then you will be both entitled to stay there at the end of your relationship, what exactly happens to the property will need to be decided by you so you should put in place a plan as to how you would deal with that tricky situation.

Day to day living expenses

You need to consider how you will each contribute to the mortgage, running of your home and the household bills. If you do not jointly own your home legal advice will be required to clarify what the contributions of the non-owner will entitle them to in order to avoid inadvertently changing their legal relationship to the property.

You should also consider how bills and accounts set up in your joint names will be dealt with if your relationship ends.

Wills and inheritance

It is really important for unmarried couples to ensure that they have up to date wills. Whilst there is legislation in place to protect married couples in the event of the other’s death there is nothing similar in place for cohabitants and this can have devastating consequences.

You will not automatically inherit each other’s estates in the event of one of you dying, it is therefore crucial if you want to leave anything to your partner that you have an up to date will.

Whilst the cohabitation agreement can reflect your intentions it does not replace a will and you should therefore take the opportunity to have an up to date will prepared at the same time as the cohabitation agreement.

Can I prepare my own cohabitation agreement?

Whilst you can find templates online they are unlikely to be as comprehensive as obtaining your own bespoke document. In order for the agreement to be legally binding you must both obtain independent legal advice on the agreement. It makes sense if you are instructing a solicitor anyway to have them involved in the drafting process to ensure that the agreement is comprehensive and legally binding.

Can I change the cohabitation agreement after it has been prepared?

Yes and you should review it regularly. It is important that you update the agreement if anything significant happens during the course of your relationship. This includes things like:

  • Having children;
  • Ill health;
  • Changes in either of your financial situations;
  • Receipt of a large inheritance;
  • Purchase of a property;
  • You plan on getting married or entering into a civil partnership.

When should I make a cohabitation agreement?

A cohabitation agreement can be prepared at any time during your relationship. This may be before you begin living together or after many years of cohabiting.

It is important that the document is regularly updated following any major life events such as, having children, ill health, a change in either of your financial situations, receipt of a large inheritance, if you purchase a property or if you plan on getting married or entering into a civil partnership.

Does a cohabitation agreement have to be signed?

Yes. In order to be binding the document must be prepared as a deed and therefore be signed. In addition, both parties should receive independent legal advice and the document must be kept up to date.

What is the difference between a cohabitation agreement and a declaration of trust?

A declaration of trust relates to a specific property. It is a formal document which records how the proportions of a property are held and how any proceeds of sale would be divided if the property is sold in the future. It should be prepared by a solicitor and it will take into account your initial contributions when purchasing the property, who will pay the mortgage, how any increase in value will be attributed after making any home improvements such as an extension.

A cohabitation agreement is much broader. You may have a declaration of trust prepared in addition to the cohabitation agreement. A cohabitation agreement rather than just reflecting the legal ownership of the property will set out your intentions in the event of your separation (where each of you should live, if the property should be sold and if so how), it will also deal with day to day expenses such as the household running costs, repair and maintenance.

What is the legal position if my partner owns the property that we both live in?

If only one of you owns the property you both live in, a cohabitation agreement will set out your intentions and respective rights to the property which will make understanding what you are each entitled to in the event of your break up more straightforward. You may also want to consider a declaration of trust to reflect the legal position of the ownership of the property.

Without a declaration of trust and cohabitation agreement having been prepared, there is a possibility that the non-owning spouse could claim a “beneficial interest” in the property. This means that a court could find in the event of your separation that the non-owning spouse is entitled to a share of any proceeds from the sale of the property, a share of any rental income or are entitled to continue living there.

If I have a cohabitation agreement do I need a will?

Yes. Whilst you can outline your wishes in the event of your death within a cohabitation agreement you should also ensure that these are reflected in an up to date will.

It is absolutely crucial that unmarried couples have up to date wills if you want your partner to inherit your estate if you die.

How much does a cohabitation agreement cost?

The cost of a cohabitation agreement will vary depending on the complexity of the affairs of the couple involved.

You will each require your own independent solicitor in the matter and typically one solicitor will take the lead with the work. Both of you will meet with your solicitor separately to discuss the case, they will advise you on your position and the contents of the agreement. The lead solicitor would take responsibility for preparing the agreement with the second solicitor reviewing it to make sure it is fair to their client.

The fees will vary between £600 and £3000 (plus VAT) depending on the complexity of the agreement to be prepared. The fees for the second solicitor should be less for the separate advice that they provide.

Whilst the cost may seem expensive. it should be considered an investment to protect your financial position in the event of your separation. Disputes following a period of cohabitation which are pursued through the courts are complex and expensive.

Choosing the right solicitor for your matter is crucial and we therefore offer a free initial consultation so that you can find out more about our services and decide whether we are the right fit for you. 

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